EXHIBIT 10.15
EXECUTION
FHGP MERGER AGREEMENT
This MERGER AGREEMENT made as of August 13, 2004 (this "Agreement"), by
and among:
(a) XXXXXXX HARRISBURG GENERAL PARTNER INC., a Pennsylvania corporation
("FHGP");
(b) XXXXXXX HARRISBURG GENERAL PARTNER MERGER INC., a Pennsylvania
corporation ("FHGP Merger");
(c) XXXXXXX MALL PROPERTIES, INC., a Maryland corporation ("FMP"); and
(d) XXXXXXX PARTNERS, LLC, an Arizona limited liability company ("FHGP
Shareholder").
RECITALS:
A. FHGP is a Pennsylvania corporation with its principal executive office
located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Arizona.
B. The authorized capital stock of FHGP consists of 100 shares of common stock
("FHGP Common Stock"), of which a total of 100 shares are issued and
outstanding.
C. FHGP Shareholder is the owner of all of the outstanding shares of FHGP
Common Stock.
D. FMP is a Maryland corporation with its principal executive office located
at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Arizona. FHGP Merger is
a wholly owned subsidiary of FMP and was formed to merge with and into
FHGP.
E. The respective Boards of Directors of each of FHGP, FHGP Merger and FMP
have determined that the merger of FHGP Merger with and into FHGP (the
"Merger") in accordance with the laws of the Commonwealth of Pennsylvania
and subject to the terms and conditions of this Agreement, is advisable and
in the best interests of FHGP, FHGP Merger and FMP and their respective
stockholders have approved this Agreement and the Merger.
F. As a result of the Merger, FHGP will survive and become a wholly-owned
subsidiary of FMP.
G. FHGP, FHGP Merger and FMP desire to make certain agreements in connection
with the Merger and also to set forth the terms and conditions of the
Merger, all as set forth Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The Merger.
1.1 The Merger. At the Effective Time (as defined in Section 1.2), upon
the terms and subject to the conditions of this Agreement, FHGP Merger shall be
merged with and into FHGP in accordance with the provisions of the Business
Corporation Law of 1988 of the Commonwealth of Pennsylvania (the "PABCL"). FHGP
shall be the surviving corporation in the Merger (the "Surviving Corporation").
As a result of the Merger, the outstanding shares of capital stock of FHGP
Merger shall be cancelled as provided in Section 2.
1.2 Effective Time. Articles of merger (the "Articles of Merger") shall be
duly executed by FHGP and FHGP Merger and thereafter delivered to the
Pennsylvania Department of State (the "Department") for filing, as provided in
Section 1927 of the PABCL on, or as soon as practicable after, the Closing Date
(hereinafter defined). The Merger shall become effective at the time (but not
prior to the Closing Date) of the filing of the Articles of Merger with the
Department, or at such later time as may be agreed by FHGP and FHGP Merger
stated in the Articles of Merger (the date and time of such filing being
referred to herein as the "Effective Time").
1.3 Closing Date. The Merger shall take place on the date designated by
FMP by notice to FHGP (the "Closing Date"); provided that such date shall be
subsequent to, but no more than five days following, the date on which all of
the conditions precedent set forth herein have been satisfied or waived.
1.4 Effects of the Merger. At the Effective Time, the effects of the
Merger shall be as provided in the applicable provisions of the PABCL.
1.5 Articles of Incorporation, By-Laws and Officers and Directors of the
Surviving Corporation. The Articles of Incorporation of FHGP Merger, as in
effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation until thereafter amended as provided
by law and such Articles of Incorporation; provided, that Article First of such
Certificate of Incorporation shall be amended as of the Effective Time to
provide that the name of the Surviving Corporation shall be "Xxxxxxx Harrisburg
General Partner Inc." The By-Laws of FHGP Merger as in effect immediately prior
to the Effective Time shall be the By-Laws of the Surviving Corporation until
thereafter amended as provided by law, the Articles of Incorporation of the
Surviving Corporation and such By-Laws. From and after the Effective Time, the
directors and officers of FHGP that were in office immediately prior to the
Effective Time shall be the directors and officers of the Surviving Corporation,
until their respective successors are duly elected or appointed and qualified or
until their earlier death, resignation or in accordance with the Surviving
Corporation's Certificate of Incorporation and By-Laws.
1.6 Tax Treatment. The parties intend that the Merger qualifies as a
tax-free reorganization as defined in Section 368(a)(1)(C) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the parties hereto agree not
to take any position for United States federal income tax purposes inconsistent
with such intended treatment.
1.7 Further Assurances. Each party hereto shall execute such further
documents and instruments and take such further actions as may reasonably be
requested by one or more of the others to consummate the Merger, to vest the
Surviving Corporation with full title to all assets, properties, rights,
approvals, immunities and franchises of FHGP Merger and FHGP or to effect the
other purposes of this Agreement.
2. Effect on Capital Stock.
2.1 Cancellation of Capital Stock of FHGP Merger. At the Effective Time,
by virtue of the Merger and without any action on the part of the holder of any
shares of the common stock of FHGP Merger ("FHGP Merger Common Stock"), each
issued and outstanding share of FHGP Merger Common Stock shall be cancelled and
retired and shall cease to exist and no consideration shall be delivered in
exchange therefor.
2.2 Conversion of Capital Stock of FHGP. At the Effective Time, by virtue
of the Merger and without any action on the part of the holder of any shares of
FHGP Common Stock:
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(a) Merger Consideration. All of the outstanding shares of FHGP
Common Stock shall be converted into and become a number of fully paid and
nonassessable shares of the common stock, par value $.01 per share, of FMP ("FMP
Common Shares") equal to 3.51305% of the Available Equity Securities (rounded to
the nearest whole FMP Common Share) (the "Merger Consideration");
(b) Stock Certificates. At the Effective Time, each certificate
representing shares of FHGP Common Stock will be deemed for all purposes to
evidence the applicable number of FMP Common Shares until such certificate is
exchanged for a certificate representing FMP Common Shares. Following the
Effective Time, FMP shall issue to FHGP Shareholder certificates representing
the Merger Consideration upon surrender by FHGP Shareholder of the certificates,
properly endorsed for transfer, representing shares of all of the FHGP Common
Stock, together with such other documents as may be reasonably requested by FMP
in connection therewith; and
(c) Certain Defined Terms. As used herein, (a) "Available Equity
Securities" means the aggregate number of OP Units and FMP Common Shares
available for allocation to the Contributors on the closing of the IPO pursuant
to the agreements listed on Schedule 1 hereto; (b) "OP Units" means common units
of limited partner interest in the Xxxxxxx Equities Operating Partnership, LP, a
Delaware limited partnership; (c) "Contributors" means (i) Xxxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxx and FHGP Shareholder (each a "Member");
(ii) members of a Member's immediate family; (iii) a trust held for the benefit
of a Member and/or such Member's immediate family; and (iv) an entity that is
wholly-owned (directly or indirectly) by a Member and/or such Member's immediate
family; and (d) "IPO" means the underwritten initial public offering of FMP of
the FMP Common Shares pursuant to an effective registration statement filed with
the Securities Exchange Commission.
2.3 Legends. All certificates representing FMP Common Shares issued in the
Merger shall bear a restrictive legend in substantially the form set forth below
(or a legend of like effect) in conspicuous type (together with any other
legends required by law or otherwise placed on such certificates):
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR UNDER
APPLICABLE STATE SECURITIES LAWS ("STATE ACTS") AND MAY BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED ONLY UPON REGISTRATION UNDER THE
SECURITIES ACT AND THE STATE ACTS OR PURSUANT TO AN EXEMPTION
THEREFROM.
In addition, all such certificates shall bear an appropriate restrictive legend
specifying that the FMP Common Shares represented by such certificate are held
by an affiliate of FMP (or, in the absence of such a legend, an appropriate
notation shall be made in the records of the FMP and/or appropriate
stop-transfer instructions shall be issued to the transfer agent).
3. Additional Documents.
3.1 On the date hereof, FHGP Shareholder shall deliver to FMP a duly
completed and executed Form W-9, FIRPTA Affidavit and Accredited Investor
Questionnaire, each in the form attached as Exhibit A to this Agreement (this
Agreement, the Lock-Up Agreement (hereinafter defined), the Accredited Investor
Questionnaire, Form W-9 and FIRPTA Affidavit collectively referred to as, the
"Transaction Documents").
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3.2 On the Closing Date, FMP and FHGP Shareholder shall execute a (i)
Registration Rights Agreement in favor of FHGP Shareholder; and (ii) "lock-up"
agreement (the "Lock-Up Agreement") which will impose resale restrictions on the
FMP Common Shares that constitute the Merger Consideration.
4. Representations, Warranties and Covenants of FHGP and FHGP Shareholder. FHGP
and FHGP Shareholder hereby acknowledges, represents and warrants to, and
covenants and agrees with FMP and FHGP Merger that (and each representation and
warranty set forth below shall be deemed remade as of the Closing Date):
4.1 Organization, Standing and Power. FHGP has been duly organized and is
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania. FHGP has all requisite corporate power and authority to own,
operate, lease and encumber its properties and carry on its business as now
being conducted. FHGP Articles of Incorporation, as amended (the "FHGP
Articles"), are in effect, and no dissolution, revocation or forfeiture
proceedings regarding FHGP have been commenced. FHGP is duly qualified or
licensed to do business as a foreign corporation and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed,
individually or in the aggregate, would not have a material adverse effect on
the business, properties, assets, financial condition or results of operations
of FHGP taken as a whole.
4.2 Capital Structure.
(a) There are 100 shares of FHGP Common Stock, 100 of which are
outstanding.
(b) FHGP Shareholder is the sole owner of all of the outstanding
shares of FHGP Common Stock.
(c) There are no:
(i) qualified or nonqualified options to purchase shares of FHGP
Common Stock or any other formal or informal arrangement to purchase shares of
FHGP Common Stock or any other equity securities of FHGP;
(ii) other warrants or other rights to acquire FHGP Common Stock
or any other equity securities of FHGP; and
(iii) stock appreciation rights, restricted stock, dividend
equivalents, deferred compensation accounts, performance awards, restricted
stock unit awards and other awards relating the FHGP Common Stock or any other
equity securities of FHGP which are outstanding on the date of this Agreement.
(d) Other than the shares of FHGP Common Stock, there are no
outstanding securities, options, warrants, calls, rights, commitments,
agreements, arrangements or undertakings of any kind to which FHGP is a party or
by which it is bound, obligating FHGP to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock, voting securities
or other ownership interests of FHGP or obligating FHGP to issue, grant, extend
or enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking.
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(e) All outstanding shares of FHGP Common Stock are duly authorized,
validly issued, fully paid and nonassessable and not subject to preemptive or
similar rights under law or the FHGP Articles or by-laws or any contract or
instrument to which FHGP is a party or by which it is bound.
(f) All dividends on FHGP Common Stock, which have been declared
prior to the date of this Agreement, have been paid in full. FHGP is not is in
arrears with respect to dividends or other distributions on any of its
outstanding shares of capital stock.
(g) FHGP is not a party to any registration rights agreement or
other agreement between FHGP, on the one hand, and one or more other parties, on
the other hand, which sets forth any obligation of FHGP with respect to the
registration of any securities of FHGP pursuant to the Securities Act of 1933,
as amended (the "Securities Act").
4.3 Authority; Noncontravention; Consents.
(a) FHGP has the requisite corporate power and authority to enter
into this Agreement and, subject to the requisite FHGP
stockholder approval of this Agreement and the Merger, to
consummate the transactions contemplated by this Agreement to
which FHGP is a party. The execution and delivery of this
Agreement by FHGP and the consummation by FHGP of the
transactions contemplated by this Agreement to which they it
it's a party has been duly authorized by all necessary action
on the part of FHGP, except for and subject to the requisite
FHGP stockholder approvals. This Agreement has been duly
executed and delivered by FHGP and constitutes a valid and
binding obligation of FHGP, enforceable against it in
accordance with and subject to its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of
equity.
(b) The execution and delivery of this Agreement by FHGP does not,
and the consummation of the transactions contemplated by this
Agreement to which FHGP is a party and compliance by FHGP with
the provisions of this Agreement will not, conflict with, or
result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material
obligation or to material loss of a benefit under, or give
rise to a right of purchase under, or result in the creation
of any lien upon any of the properties or assets of FHGP
under, (i) the FHGP Articles or by-laws, (ii) any agreement
applicable to FHGP, the properties or assets of FHGP or (iii)
any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to FHGP or its properties or assets.
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental
entity is required by or with respect to FHGP in connection
with the execution and delivery of this Agreement by FHGP or
the consummation by FHGP of the transactions contemplated by
this Agreement, except for the filing and acceptance for
record of the Articles of Merger by the Department.
4.4 Continuing Efforts. Subject to the terms and conditions herein
provided, FHGP covenants and agrees to use its best efforts to take, or cause to
be taken, all actions and do, or cause to be done, all things necessary, proper
and/or appropriate to consummate and make effective the transactions
contemplated by this Agreement.
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5. Representations, Warranties and Covenants of FHGP Shareholder. FHGP
Shareholder hereby acknowledges, represents and warrants to, and covenants and
agrees with FMP that (and each representation and warranty set forth below shall
be deemed remade as of the Closing Date):
5.1 Approval of FMP Organizational Documents. FHGP Shareholder has
reviewed and approved the forms of the Charter and by-laws of FMP (as amended
from time to time, collectively, the "FMP Organizational Documents"), and FHGP
Shareholder consents to any changes to the FMP Organizational Documents approved
by FMP.
5.2 Uncertainty as to Amount or Value of Available Equity Securities and
Merger Consideration.
(a) As of the date of this Agreement FMP does not know the number or
value of the Available Equity Securities and, accordingly, the value of or the
number of shares representing the Merger Consideration.
(b) The number and value of the Available Equity Securities and
Merger Consideration will depend on a number of factors, including possible
acquisitions that FMP or an affiliate thereof may accomplish, the valuation that
is eventually achieved by FMP in the IPO, and prevailing market and other
conditions.
5.3 Authority; Authorization; Execution and Delivery.
(a) FHGP Shareholder has full power and authority to enter into the
Transaction Documents and to consummate the transactions contemplated by this
Agreement.
(b) The execution and delivery of the Transaction Documents by FHGP
Shareholder and the consummation by FHGP Shareholder of the transactions
contemplated by the Transaction Documents have been duly authorized by all
necessary action on the part of FHGP Shareholder and will not constitute or
result in a breach or default under, or conflict with or violate, any agreement
or other undertaking, to which FHGP Shareholder is a party or by which FHGP
Shareholder is bound or with any judgment, decree, statute, order, rule or
regulation applicable to FHGP Shareholder or FHGP Shareholder's assets, and, if
FHGP Shareholder is not an individual, will not violate any provisions of the
organizational or other formation or governing documents of FHGP Shareholder.
(c) The Transaction Documents have been duly executed and delivered
by FHGP Shareholder and constitute valid and legally binding obligations of FHGP
Shareholder, enforceable against FHGP Shareholder in accordance with and subject
to their respective terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and general
principles of equity. The signatures on the Transaction Documents are genuine,
and the signatory, if FHGP Shareholder is an individual, has legal competence
and capacity to execute the same, or, if FHGP Shareholder is not an individual,
the signatory has been duly authorized to execute the same on behalf of FHGP
Shareholder.
5.4 Purchase for Investment.
(a) FHGP Shareholder is acquiring the Merger Consideration for FHGP
Shareholder's own account (or if FHGP Shareholder is a trustee, for a trust
account) for investment only, and not with a view to or for sale in connection
with any distribution of all or any part of such Merger Consideration.
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(b) FHGP Shareholder hereby agrees that FHGP Shareholder shall not,
directly or indirectly, transfer all or any part of the Merger Consideration (or
solicit any offers to buy, purchase or otherwise acquire or take a pledge of all
or any part of the Merger Consideration) except in accordance with (i) the
registration provisions of the Securities Act and the regulations thereunder or
an exemption from such registration provisions; (ii) any applicable state or
non-U.S. securities laws; (iii) the terms of this Agreement; and (iv) the FMP
Organizational Documents.
(c) FHGP Shareholder understands that (i) FHGP Shareholder must bear
the economic risk of an investment in the Merger Consideration for an indefinite
period of time because, among other reasons, the transfer of the Merger
Consideration have not been registered under the Securities Act and, therefore,
the Merger Consideration cannot be sold unless such resale is subsequently
registered under the Securities Act or an exemption from such registration is
available; and (ii) sales or transfers of the Merger Consideration are further
restricted by the provisions of the FMP Organizational Documents, as applicable,
and may be restricted by other applicable securities laws. If at any time the
Merger Consideration are evidenced by certificates or other documents, each such
certificate or other document shall contain a legend stating that (x) the Merger
Consideration (1) has not been registered under the Securities Act or the
securities laws of any state; (2) has been issued pursuant to a claim of
exemption from the registration provisions of the Securities Act and any state
securities law which may be applicable; and (3) may not be sold, transferred or
assigned without compliance with the registration provisions of the Securities
Act and the regulations thereunder and any other applicable Federal or state
securities laws or compliance with applicable exemptions therefrom; and (y)
sale, transfer or assignment of such Merger Consideration is further subject to
restrictions contained in the LP Agreement and such Merger Consideration may not
be sold, transferred or assigned unless and to the extent permitted by, and in
accordance with, the provisions of the FMP Organizational Documents.
5.5 Information.
(a) FHGP Shareholder has carefully reviewed this Agreement, the
forms of the Charter and by-laws of FMP. FHGP Shareholder has been provided an
opportunity to ask questions of, and FHGP Shareholder has received answers
thereto satisfactory to FHGP Shareholder from FMP or its representatives
regarding the terms and conditions of the transfer of the Merger Consideration,
and FHGP Shareholder has obtained all additional information requested by FHGP
Shareholder of FMP and its representatives to verify the accuracy of all
information furnished to FHGP Shareholder regarding the issuance of the Merger
Consideration.
(b) FHGP Shareholder is not relying on FMP or any of its
subsidiaries, affiliates or any of their respective representatives or agents
with respect to any tax or other economic considerations involved in connection
with the Merger Consideration.
(c) FHGP Shareholder has been advised to consult with his or its
tax, legal and other advisors regarding the transfer of the Merger Consideration
and its effects, the tax consequences of making and not making a subscription
hereunder, and has obtained, in FHGP Shareholder's judgment, sufficient
information to evaluate the merits and risks of such subscription and
investment.
(d) FHGP Shareholder has not been furnished with and has not relied
on any oral or written representation from any party other than his or its
advisors in connection with the transfer of the Merger Consideration that is not
contained in this Agreement.
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5.6 Economic and Liquidity Risk.
(a) FHGP Shareholder has such knowledge and experience in financial
and business matters such that FHGP Shareholder is capable of evaluating the
merits and risks of making a subscription for the Merger Consideration, and that
FHGP Shareholder has evaluated the risks of investing in the Merger
Consideration and has determined that they are a suitable investment for FHGP
Shareholder.
(b) FHGP Shareholder understands that an investment in the Merger
Consideration is a speculative investment that involves very significant risks
and tax uncertainties and that FHGP Shareholder is prepared to bear all of the
economic, tax and other risks of an investment in the Merger Consideration for
an indefinite period of time, and is able to withstand a total loss of FHGP
Shareholder's investment in the Merger Consideration.
(c) FHGP Shareholder has adequate net worth and no need for
liquidity in his investment in the Merger Consideration.
5.7 Eligibility; Accredited Investor Status. FHGP Shareholder is an
"accredited investor" as defined in Regulation D under the Securities Act. FHGP
Shareholder will, upon request, execute, deliver and/or provide any additional
documents deemed by FMP to be necessary or desirable to confirm FHGP
Shareholders such status.
5.8 Ownership of the FHGP Common Shares.
(a) FHGP Shareholder has good and marketable title to the FHGP
Common Shares, free and clear of all pledges, claims, liens, restrictions,
charges, encumbrances, security interests, conditional sales agreements and
other obligations of any kind or nature. FHGP Shareholder shall not sell,
convey, assign or otherwise transfer all or any portion of the FHGP Common
Shares prior to the Closing Date. FHGP Shareholder is the sole owner of all of
the outstanding FGHP Common Shares.
(b) FHGP Shareholder is not and will not be (i) an "employee benefit
plan" within the meaning of Section 3(3) of ERISA, whether or not subject to
ERISA, (ii) a "plan" within the meaning of Section 4975 of the Code, or (iii)
any person or entity whose assets include or are deemed to include the assets of
any such "employee benefit plan" or "plan" by reason of Section 2510.3-101 of
the Regulations of the U.S. Department of Labor or otherwise. FHGP Shareholder
will, upon request, execute, deliver and/or provide any additional documents
deemed by FMP to be necessary or desirable to confirm the foregoing.
5.9 Residence; Etc. The signature pages attached to this Agreement
correctly set forth
(a) if FHGP Shareholder is a natural person, the principal residence
of FHGP Shareholder;
(b) if FHGP Shareholder is a corporation, partnership, limited
liability company, business trust or other entity (an "Entity"), the place of
business (or, if there is more than one place of business, the chief executive
office) of FHGP Shareholder;
(c) if FHGP Shareholder is an Entity other than a general
partnership, the state of incorporation, organization or formation of FHGP
Shareholder;
(d) if FHGP Shareholder is a trust (other than a business trust),
the principal residence and place of business (or, if there is more than one
place of business, the chief executive office) of each trustee of FHGP
Shareholder that is a natural person; and
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(e) if FHGP Shareholder is a trust (other than a business trust),
the place of business (or, if there is more than one place of business, the
chief executive office) and state of incorporation, organization or formation of
each trustee of FHGP Shareholder that is an Entity.
5.10 Status as Foreign Person. FHGP Shareholder is not a foreign person
and is not owned directly or indirectly, in whole or in part, by a foreign
person as determined for purposes of Section 1445 of the Code, and the
regulations promulgated thereunder.
5.11 Continuing Efforts. Subject to the terms and conditions herein
provided, FHGP Shareholder covenants and agrees to use its best efforts to take,
or cause to be taken, all actions and do, or cause to be done, all things
necessary, proper and/or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
5.12 No Brokers or Finders. FHGP Shareholder has not entered into any
agreement and is not otherwise liable or responsible to pay any brokers' or
finders' fees or expenses to any person or Entity with respect to this Agreement
or the Merger Consideration.
6. Representations, Warranties and Covenants of FHGP Merger and FMP. FMP and
FHGP Merger hereby acknowledges, represents and warrants to, and covenants and
agrees with FHGP and FHGP Shareholder that (and each representation and warranty
set forth below shall be deemed remade as of the Closing Date):
6.1 Organization, Standing and Power. FHGP Merger has been duly organized
and is validly existing and in good standing under the laws of the Commonwealth
of Pennsylvania. FHGP Merger has all requisite corporate power and authority to
own, operate, lease and encumber its properties and carry on its business as now
being conducted. FHGP Merger Articles of Incorporation, as amended (the "FHGP
Merger Articles"), are in effect, and no dissolution, revocation or forfeiture
proceedings regarding FHGP Merger have been commenced. FHGP Merger is duly
qualified or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be so qualified
or licensed, individually or in the aggregate, would not have a material adverse
effect on the business, properties, assets, financial condition or results of
operations of FHGP Merger taken as a whole.
6.2 Capital Structure.
(a) There are 1,000 shares of FHGP Merger Common Stock, 100 of which
are outstanding.
(b) FMP is the sole owner of all of the outstanding shares of FHGP
Merger Common Stock.
(c) There are no:
(i) qualified or nonqualified options to purchase shares of FHGP
Merger Common Stock or any other formal or informal arrangement to purchase
shares of FHGP Merger Common Stock or any other equity securities of FHGP
Merger;
(ii) other warrants or other rights to acquire FHGP Merger Common
Stock or any other equity securities of FHGP Merger; and
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(iii) stock appreciation rights, restricted stock, dividend
equivalents, deferred compensation accounts, performance awards, restricted
stock unit awards and other awards relating the FHGP Merger Common Stock or any
other equity securities of FHGP Merger which are outstanding on the date of this
Agreement.
(d) Other than the shares of FHGP Merger Common Stock, there are no
outstanding securities, options, warrants, calls, rights, commitments,
agreements, arrangements or undertakings of any kind to which FHGP Merger is a
party or by which it is bound, obligating FHGP to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock,
voting securities or other ownership interests of FHGP Merger or obligating FHGP
Merger to issue, grant, extend or enter into any such security, option, warrant,
call, right, commitment, agreement, arrangement or undertaking.
(e) All outstanding shares of FHGP Merger Common Stock are duly
authorized, validly issued, fully paid and nonassessable and not subject to
preemptive or similar rights under law or the FHGP Merger Articles or by-laws or
any contract or instrument to which FHGP Merger is a party or by which it is
bound.
(f) All dividends on FHGP Merger Common Stock, which have been
declared prior to the date of this Agreement, have been paid in full. Neither
FHGP Merger is in arrears with respect to dividends or other distributions on
any of its outstanding shares of capital stock.
(g) FHGP Merger is not a party to any registration rights agreement
or other agreement between FHGP Merger, on the one hand, and one or more other
parties, on the other hand, which sets forth any obligation of FHGP Merger with
respect to the registration of any securities of FHGP Merger pursuant to the
Securities Act.
6.3 Authority; Noncontravention; Consents.
(a) FHGP Merger has the requisite corporate power and authority to
enter into this Agreement and, subject to the requisite FHGP
Merger stockholder approval of this Agreement and the Merger,
to consummate the transactions contemplated by this Agreement
to which FHGP Merger is a party. The execution and delivery of
this Agreement by FHGP Merger and the consummation by FHGP
Merger of the transactions contemplated by this Agreement to
which they it it's a party has been duly authorized by all
necessary action on the part of FHGP Merger, except for and
subject to the requisite FHGP Merger stockholder approvals.
This Agreement has been duly executed and delivered by FHGP
Merger and constitutes a valid and binding obligation of FHGP
Merger, enforceable against it in accordance with and subject
to its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
and general principles of equity.
(b) The execution and delivery of this Agreement by FHGP Merger
does not, and the consummation of the transactions
contemplated by this Agreement to which FHGP Merger is a party
and compliance by FHGP Merger with the provisions of this
Agreement will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination,
cancellation or acceleration of any material obligation or to
material loss of a benefit under, or give rise to a right of
purchase under, or result in the creation of any lien upon any
of the properties or assets of FHGP Merger under, (i) the FHGP
Merger Articles or by-laws, (ii) any agreement applicable to
FHGP Merger, the properties or assets of FHGP Merger or (iii)
any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to FHGP Merger or its properties or
assets.
10
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental
entity is required by or with respect to FHGP Merger in
connection with the execution and delivery of this Agreement
by FHGP Merger or the consummation by FHGP Merger of the
transactions contemplated by this Agreement, except for the
filing and acceptance for record of the Articles of Merger by
the Department.
6.4 Continuing Efforts. Subject to the terms and conditions herein
provided, FHGP Merger covenants and agrees to use its best efforts to take, or
cause to be taken, all actions and do, or cause to be done, all things
necessary, proper and/or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
7. Representations, Warranties and Covenants of FMP. FMP hereby acknowledges,
represents and warrants to, and covenants and agrees with, FHGP Shareholder that
(and each representation and warranty set forth below shall be deemed remade as
of the Closing Date):
7.1 Authority; Authorization; Execution and Delivery.
(a) FMP has full power and authority to enter into this Agreement
and to consummate the transactions contemplated thereby.
(b) The execution and delivery of this Agreement and the
consummation by FMP of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of FMP.
(c) This Agreement has been duly executed and delivered by FMP and
constitutes the valid and legally binding obligations of FMP, enforceable
against FMP in accordance with and subject to its respective terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
7.2 Commercially Reasonable Efforts. Subject to the terms and conditions
herein provided, the FMP covenants and agrees to use commercially reasonable
efforts to take, or cause to be taken, all actions and do, or cause to be done,
all things necessary, proper and/or appropriate to consummate and make effective
the transactions contemplated by this Agreement.
8. Survival. The representations, warranties, covenants and agreements contained
in this Agreement and the Accredited Investor Questionnaire shall survive the
consummation of the transactions contemplated herein.
9. Conditions to Consummation by FHGP Shareholder and FHGP. The obligations of
FHGP Shareholder and FHGP to consummate the Merger and receive the Merger
Consideration pursuant this Agreement are subject to the fulfillment of the
following conditions (which may be waived by him or it):
9.1 Representations, Warranties and Covenants. The representations and
warranties of FHGP Merger and FMP contained herein shall be true,
correct and complete in all material respects on and as of the
Closing Date with the same force and effect as though made on and as
of such date unless expressly stated therein to be made as of a
specified date. FHGP Merger and FMP shall have performed in all
material respects all obligations required to be performed by it
under this Agreement at or prior to the Closing Date.
11
9.2 Closing Documents. FHGP Merger shall have duly executed and
delivered to FHGP and FHGP Shareholder on or prior to the Closing
Date all documents that are reasonably requested by FHGP or FHGP
Shareholder to effectuate the transactions contemplated hereby.
10. Conditions to Consummation by FMP and FHGP Merger. The obligations of FMP
and FHGP Merger to consummate the Merger are subject to the fulfillment of the
conditions set forth in this Article 10, any one or more of which may be waived
by FMP:
10.1 Closing of the IPO. The closing of the IPO shall have occurred.
10.2 Representations, Warranties and Covenants. The representations and
warranties of FHGP and FHGP Shareholder contained in this Agreement shall be
true, correct and complete in all material respects on and as of the Closing
Date with the same force and effect as though made on and as of such date unless
expressly stated herein to be made as of a specified date. FHGP and FHGP
Shareholder shall have performed in all material respects all obligations
required to be performed by him or it under this Agreement at or prior to the
Closing Date.
10.3 Closing Documents. FHGP Shareholder and FHGP shall have duly executed
and delivered to FMP on or prior to the Closing Date all documents that are
reasonably requested by FMP to effectuate the transactions contemplated hereby,
including but not limited to the Transaction Documents.
11. Indemnity.
11.1 FHGP Shareholder and FHGP each hereby agrees to indemnify and defend
FHGP Merger, FMP and their respective direct and indirect partners, members,
shareholders, officers, directors and affiliates (each, an "Indemnified Party")
against and to hold them harmless from any and all damage, loss, liability and
expense incurred or suffered by any Indemnified Party arising out of or based
upon the inaccuracy of any representation or warranty or breach of any covenant
or agreement made or to be performed by FHGP Shareholder or FHGP pursuant to the
Transaction Documents.
11.2 FMP and FHGP Merger hereby agrees to indemnify and defend the FHGP
Shareholder and FHGP against any and all damage, loss, liability and expense
incurred or suffered by it or him out of or based upon the inaccuracy of any
representation or warranty or breach of any agreement made or to be performed by
FMP or FHGP Merger pursuant to this Agreement.
12. Power of Attorney. By executing this Agreement, FHGP Shareholder and FHGP
each hereby irrevocably constitutes and appoints FMP as his or its
attorney-in-fact and agent with full power of substitution to take any and all
actions and execute any document and agreement relating to the Merger
Consideration or this Agreement, on FHGP Shareholder's or FHGP's behalf, as
applicable, and in FHGP Shareholder's or FHGP's name, as applicable, as FMP may
deem necessary or desirable.
13. Termination. This Agreement shall terminate automatically if the Closing
Date has not occurred within two years after the date of this Agreement.
14. General Provisions.
12
14.1 Modification. Neither this Agreement nor any provisions hereof shall
be waived, modified, discharged or terminated except by an instrument in writing
signed by the party against whom any waiver, modification, discharge or
termination is sought; provided that FHGP Shareholder and FHGP each agrees to
future modifications of this Agreement as may be reasonably proposed by FMP,
provided that such modifications do not have any negative impact on the tax
position of FHGP Shareholder or FGHP.
14.2 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to FHGP Shareholder or FHGP: Insert applicable addressee:
[Xxxxxxx Partners, LLC]
[Xxxxxxx Harrisburg General
Partner Inc.]
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
If to FMP or FHGP Merger: Insert applicable addressee:
[Xxxxxxx Mall Properties, Inc.]
[Xxxxxxx Harrisburg General
Partner Merger Inc.]
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
in each case, with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
All such notices, requests and other communications will (a) if delivered
personally to the applicable addressees as provided in this Section 14.2, be
deemed given upon delivery; (b) if delivered by facsimile transmission to the
applicable facsimile numbers as provided in this Section 14.2, be deemed given
upon receipt; and (c) if delivered by mail to the applicable addressees as
provided in this Section 14.2, be deemed given upon receipt or refusal (in each
case regardless of whether such notice, request or other communication is
received by any other Entity or person to whom a copy of such notice is to be
delivered pursuant to this Section 14.2). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto
in accordance with this Section 14.2.
14.3 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns. If FHGP Shareholder is itself more than one person, the obligations of
such persons shall be joint and several and the acknowledgements,
representations, warranties, covenants and agreements herein contained shall be
deemed to be made by and be binding upon each such person and his or her heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
13
14.4 Entire Agreement. The Transaction Documents and the documents
referred to therein contain the entire agreement of the parties with respect to
the Merger and the Merger Consideration, and there are no representations,
warranties, covenants or other agreements except as stated or referred to herein
or therein.
14.5 Ambiguity. The parties hereto agree that any ambiguity with respect
to the Merger or the rights or obligations of the parties under this Agreement
shall be resolved by the Board of Directors of FMP, which resolution shall be
binding on the parties.
14.6 Assignability. This Agreement is not transferable or assignable by
any party hereto. This Agreement shall be for the benefit of the parties hereto.
14.7 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
14.8 Counterparts. This Agreement may be executed by facsimile signature
and through the use of separate signature pages or in counterparts, and each of
such counterparts shall, for all purposes, constitute one agreement binding on
the parties hereto, notwithstanding that the parties hereto are not signatories
to the same counterpart.
14.9 Further Assurances. FHGP and FHGP Shareholder will, from time to
time, execute and deliver to FMP all such other and further instruments and
documents and take or cause to be taken all such other and further action as FMP
may reasonably request in order to effect the transactions contemplated by this
Agreement. Without limiting the foregoing, FMP may request from FHGP Shareholder
such additional information as it may deem necessary to evaluate the eligibility
of FHGP Shareholder to acquire the Merger Consideration, and may request from
time to time such information as it may deem necessary to determine the
eligibility of FHGP Shareholder to hold the Merger Consideration or to enable
FMP to determine FHGP Shareholder's compliance with applicable regulatory
requirements or tax status, and FHGP Shareholder shall provide such information
as may reasonably be requested.
14.10 Severability. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law. Upon the
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect their original intent as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
14.11 Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement.
14.12 Expenses. Each of the parties hereto agrees to pay the expenses
incurred by it in connection with the negotiation, preparation, review,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including the fees and expenses of counsel to
such party.
[The remainder of this page has been intentionally left blank.]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
FHGP: REDEEMING MEMBER:
XXXXXXX HARRISBURG GENERAL PARTNER INC., XXXXXXX PARTNERS, LLC,
a Pennsylvania corporation an Arizona limited
liability company
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxx
-------------------- --------------------
Name: Name: Xxxxxxxx Xxxxxxx
Title: Title: Manager
FHGP MERGER: FMP:
XXXXXXX HARRISBURG GENERAL PARTNER MERGER INC., XXXXXXX MALL PROPERTIES, INC.,
a Pennsylvania corporation a Maryland corporation
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxx
-------------------- --------------------
Name: Name:
Title: Title:
15
EXECUTION
Schedule 1
1. Xxxxxxx Partners, LLC Redemption Agreement dated as of August 13, 2004,
among Xxxxxxx Partners, LLC, an Arizona limited liability company ("FP"),
Xxxxxxx Equities of Arizona, LLC, an Arizona limited liability company
("FEA"), Xxxxxxx Equities Operating Partnership, LP, a Delaware limited
partnership (the "Partnership"), Xxxxxxx Holdings Business Trust I, a
Massachusetts business trust (the "General Partner"), and Xxxxxxx Mall
Properties, Inc., a Maryland corporation ("FMP").
2. Recapitalization Agreement dated as of August 13, 2004, among Xxxxx Xxxxx,
Xxxxx Xxxxxx, the Partnership and FMP.
3. Subscription Agreement dated as of August 13, 2004, among the Partnership,
FMP and FEA.
4. Xxxxxx Redemption Agreement dated as of August 13, 2004, among Xxxxxxx
Xxxxxx, FEA, the Partnership, the General Partner and FMP.
5. Irrevocable Contribution Agreement dated as of August 13, 2004, among
Xxxxxxxx Xxxxxxx, the Partnership, the General Partner, FMP and FEA.
6. FEGP Merger Agreement dated as of August 13, 2004, among Xxxxxxx Equities
General Partner Inc., a Pennsylvania corporation, Xxxxxxx Equities General
Partner Merger Inc., a Pennsylvania corporation, FMP and FP.
7. FHGP Merger Agreement dated as of August 13, 2004, among Xxxxxxx Harrisburg
General Partner Inc., a Pennsylvania corporation, Xxxxxxx Harrisburg
General Partner Merger Inc., a Pennsylvania corporation, FMP and FP.
EXHIBIT A
FORM W-9
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SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security
Form W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW Number(s) or Employer
Identification Number
-----------------------------------------------------------------------------------------------------------------------
Department of Part 2 --Certification -- Under penalties of perjury, I certify that: (1) The number shown
The Treasury on this form is my correct taxpayer identification number (or I am waiting for a number to
Internal Revenue be issued to me); (2) I am not subject to backup withholding because: (a) I am exempt from
Service backup withholding, or (b) I have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a result of failure to report all
interest or dividends, or the IRS has notified me that I am no longer subject to backup
withholding; and (3) I am a U.S. person (including a U.S. resident alien).
-----------------------------------------------------------------------------------------------------------------------
Payer's Certification Instructions -- You must cross out item (2) above if Part 3 --
Request for you have been notified by the IRS that you are subject to backup Awaiting TIN
Taxpayer withholding because you have failed to report all interest and |_|
Identification dividends on your tax return. However, if after being notified by
Number (TIN) the IRS that you were subject to backup withholding you received
another notification from the IRS that you are no longer subject
to backup withholding, do not cross out item (2).
-----------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
(Applicable only if the box in Part 3 above is checked)
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a)
I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal
Revenue Service Center or Social Security Administration office, or (b) I intend to mail or deliver an application
in the near future. I understand that if I do not provide a taxpayer identification number within sixty days, 28
percent of all reportable payments made to me thereafter will be withheld until I provide a taxpayer identification
number.
----------------------------------------------------------------------------------------------------------------------
XXXXXXX PARTNERS, LLC,
an Arizona limited liability company
By: /s/ Xxxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
EXHIBIT A (CONTINUED)
--------------------------------------------------------------------------------
FIRPTA AFFIDAVIT -- CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that (a) a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person and (b) a partnership must withhold tax with respect to certain amounts
that are allocable to or would otherwise be distributed to a foreign person that
owns an interest in such partnership. To inform FMP that withholding of tax is
not required, the undersigned hereby certifies the following as of the date
hereof and as of the Closing Date:
1._______FHGP Shareholder, if an individual, is not a nonresident alien
for purposes of U.S. income taxation, and if not an individual, is not a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations);
2._______FHGP Shareholder, if not an individual, is not a disregarded
entity as defined in Section 1.1445-2(b)(2)(iii) of the Income Tax Regulations
promulgated under the Internal Revenue Code.
3._______FHGP Shareholder's Social Security Number (for individuals) or
Employer Identification Number (for non-individuals) is: _____________; and
4._______FHGP Shareholder's address is: Xxxxxxx Partners, LLC, 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
In addition, FHGP Shareholder agrees to inform FMP if he or it becomes a foreign
person at any time during the three year period immediately following the date
of this notice.
I understand that this certification may be disclosed to the Internal Revenue
Service by FMP and that any false statement I have made here could be punished
by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification and
to the best of my knowledge and belief it is true, correct and complete, and, if
this document is being signed on behalf of a FHGP Shareholder that is not an
individual, I further declare that I have authority to sign this document on
behalf of FHGP Shareholder.
XXXXXXX PARTNERS, LLC,
an Arizona limited liability company
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
--------------------------------------------------------------------------------
EXHIBIT A (CONTINUED)
ACCREDITED INVESTOR QUESTIONNAIRE
FHGP Shareholder hereby represents and warrants that he, she or it is
an "Accredited Investor," as such term is defined in Rule 501 under Regulation D
of the Securities Act based upon the fact that he, she or it meets at least one
of the following requirements (check all that apply):
_______ (1) he or she is a natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his or her purchase exceeds
$1,000,000; or
_______ (2) he or she is a natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and who has a
reasonable expectation of reaching the same income level in the current year; or
_______ (3) it is a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; or
_______ (4) it is a bank as defined in Section 3(a)(2) of the Securities Act, or
a savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary
capacity; a broker dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section 2(a)(48) of
that Act; a Small Business Investment Company licensed by the United States
Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; or an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of such Act,
which is either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has total assets
in excess of $5,000,000 or, if a self-directed plan, with investment decisions
made solely by persons that are accredited investors; or
_______ (5) it is an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or Company,
not formed for the specific purpose of acquiring the Merger Consideration, with
total assets in excess of $5,000,000; or
_______ (6) it is a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the Merger Consideration, whose purchase
is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the
Securities Act; or
_______ (7) it is an Entity in which all the equity owners are Accredited
Investors under any one of items (1) through (6) above.
Capitalized terms not defined herein shall have the meaning ascribed to such
terms in that certain FHGP Merger Agreement dated as of August 13, 2004, among
Xxxxxxx Harrisburg General Partner Inc., Xxxxxxx Harrisburg General Partner
Merger Inc., Xxxxxxx Equities Operating Partnership, LP, Xxxxxxx Mall
Properties, Inc. and Xxxxxxx Partners, LLC.
XXXXXXX PARTNERS, LLC,
an Arizona limited liability company
By: /s/ Xxxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Date: August 13, 2004
